U.S. v. Weatherspoon

• Decision Date: 13 June 2005
• Docket Number: No. 03-10551.,03-10551.
• Citation: 410 F.3d 1142
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kendrick WEATHERSPOON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

410 F.3d 1142

UNITED STATES of America, Plaintiff-Appellee, v. Kendrick WEATHERSPOON, Defendant-Appellant.

No. 03-10551.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2004.

Filed June 13, 2005.

Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the appellant.

Darin La Hood, Assistant United States Attorney, Las Vegas, NV, for the appellee.

Appeal from the United States District Court for the District of Nevada; David W. Hagen, District Judge, Presiding. D.C. No. CR-S-03-0076-DWH (LRL).

Before TROTT and McKEOWN, Circuit Judges, and SHADUR, Senior District Judge.^*

ORDER WITHDRAWING OPINION AND OPINION

ORDER

We have received a motion by the United States Attorney for the District of Nevada seeking modification of the written opinions in this case (both the majority opinion and the partial-concurrence-partial-dissent). For the reasons stated here, the motion is granted in part.

As for the majority opinion, the one modification that the motion seeks is its elimination of the word "recidivist" from this sentence:

To label such recidivist conduct as "unremarkable" is itself remarkable.

Because the motion mistakenly characterizes that usage as "inartful," something should be said to dispel that notion. Webster's Third New International Dictionary lists this as the primary definition and example of "recidivist" (true to the term's medieval Latin and French etymology), before giving a secondary definition referring to criminal repeat offenders:

one who relapses or has suffered a relapse (some of the patients admitted are new cases, others are recidivists)

That mirrors the dictionary's primary definition and example of "recidivism":

a tendency to relapse into a previous condition or mode of behavior (a study of recidivism in mental patients)

In the context and place where "such recidivist conduct" appears in the opinion, then, the term's usage clearly conforms to that first-listed common meaning.

Nonetheless we recognize the United States Attorney's sensitivity to the fact that the term's usage most familiar to lawyers is in connection with criminal repeat offenders, a connotation that was certainly not intended by the opinion. Accordingly we have substituted the phrase "such repeat-offender conduct" for "such recidivist conduct."

As for the motion's expressed concerns regarding the partial-concurrence-partial-dissent, that opinion has been revised to delete any references to the name of the Assistant United States Attorney who handled the case, as well as making certain other changes. Hence the original opinion is ordered withdrawn, and a new opinion has been substituted in its place.

OPINION

SHADUR, Senior District Judge.

Kendrick Weatherspoon ("Weatherspoon") appeals his conviction on one count of felon-in-possession of a firearm. Because we find that prosecutorial misconduct during the closing arguments affected the jury's fair consideration of the evidence in the record, we reverse and remand for a new trial.

Factual and Procedural Background

At approximately 3 a.m. on August 22, 2002, Officer Shanan Kelly ("Kelly") of the Las Vegas Metropolitan Police Department stopped a vehicle that had failed to use its turn signal. Inside were three individuals: Vaneshia Taylor ("Taylor") in the driver's seat, Weatherspoon in the front passenger seat and Donald Ray Harris ("Harris") in the seat directly behind Weatherspoon. When a records check indicated that Weatherspoon had outstanding warrants, Kelly called in Officer Ray Kent ("Kent") as backup and Weatherspoon was arrested. Taylor consented to a vehicle search that led to the discovery of a loaded semiautomatic handgun under the front passenger seat. Weatherspoon was then charged as a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Neither officer had actually seen Weatherspoon in possession of the gun, and the forensic evidence was inconclusive. So the arrest was based instead on circumstantial evidence and on the contents of handwritten statements provided to police at the time of the arrest by Taylor and Harris. Taylor had then said that she saw Weatherspoon drop a black gun to the floor of the vehicle and slide it under the seat immediately after the car was pulled over, while Harris asserted that he had seen Weatherspoon earlier in the evening with a black gun tucked into his waist.¹

But the government's case at trial was not as straightforward as those two statements might suggest. After the arrest Taylor fully recanted her statement and explained that she initially provided it (1) because the officers had threatened that she would herself be charged with offenses if she did not implicate Weatherspoon and (2) because she feared that any such charges would lead her to lose custody of her children. Although Harris never recanted the content of his statement, he did acknowledge at trial that he had provided it as a "stipulation" for not being arrested on outstanding warrants.

Because Weatherspoon's guilt depended on his possession of the firearm,² and because the officers did not directly observe Weatherspoon with the gun, the two-day trial centered around the accuracy of the statements provided by Taylor, Harris and the two officers on the scene. Defense counsel, arguing that the Taylor and Harris statements should not be credited by the jury because they were supplied in response to police pressure, focused instead on testimony by each of them—both before a grand jury and at trial—that was far more questionable in terms of ascribing possession of the gun to Weatherspoon. And the defense also challenged the credibility of Harris' testimony by suggesting that he had an incentive to implicate Weatherspoon: to avoid being arrested himself under state law.

For its part, the government relied on the testimony of Officers Kelly and Kent, in which they denied exerting improper influence over the submission of the Taylor and Harris statements, to argue that those statements constituted strong evidence of possession. And the prosecution also questioned the credibility of Taylor's claims of police pressure by raising the existence of a sexual relationship between Taylor and Weatherspoon.

Ultimately the jury returned a guilty verdict against Weatherspoon on the single count of felon-in-possession of a firearm. Weatherspoon urges that the verdict was impermissibly tainted by improper statements made by the prosecutor during closing arguments, and he now appeals.

Prosecutorial Misconduct

Analysis of a claim of prosecutorial misconduct focuses on its asserted impropriety and substantial prejudicial effect (see e.g., United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir.1988)). We must therefore determine at the outset whether the prosecutor made improper statements during the course of the trial, after which we will turn to the effect of any such misconduct.

As to the threshold issue of impropriety, we conclude that prosecutorial misconduct was clearly involved, both (1) because the prosecutor vouched for the credibility of witnesses and (2) because he also made arguments designed to encourage the jury to convict in order to alleviate social problems. We address those issues seriatim.

"Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony" (United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993)). On that score Weatherspoon contends that the prosecutor vouched for the credibility of all of the major witnesses in his case: Kelly, Kent, Taylor and Harris.

At the very outset of his argument the prosecutor said this in discussing the testimony provided by the officers:

We, first of all, heard from Officer Kelly, Metro officer; credible police officer.

That statement garnered an objection, and the district court instructed the prosecutor not to vouch. Undaunted, the prosecutor returned to the theme of police credibility in his rebuttal, telling the jury that the officers "had no reason to lie in this case or not tell the truth." After defense counsel's objection to that statement on vouching grounds was overruled, the prosecutor went even further:

They had no reason to come in here and not tell you the truth. And they took the stand and they told you the truth. I guess, if you believe Mr. Valladeres [defense counsel], they must have lied at the scene there; they came into this court and they lied to you; they lied to this judge; they lied to me; they lied to my agent, Agent Baltazar. I guess they lied to the dispatcher when they called it in. These are officers that risk losin' their jobs, risk losin' their pension, risk losin' their livelihood. And, on top of that if they come in here and lie, I guess they're riskin' bein' prosecuted for perjury. Doesn't make sense because they came in here and told you the truth, ladies and gentlemen.

That statement was clearly improper. In United States v. Combs, 379 F.3d 564, 574-76 (9th Cir.2004) we recently considered similar statements made by a prosecutor during rebuttal and found that they constituted impermissible vouching because the prosecutor "plainly implied that she knew [an agent] would be fired for committing perjury and that she believed no reasonable agent in his shoes would take such a risk" (id. at 575). To be sure, the present situation is not quite as egregious as that in Combs, because the prosecutor there instructed the jury that they could be "darn sure he [the agent] would get fired for perjuring himself" (id. at 568), while no such firm assurance was provided here. But no such modest shade of difference in the level of impropriety calls for a different result, for the prosecutor here (like the prosecutor in Combs) clearly urged that the existence of legal and professional repercussions served to ensure the...